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  CSPAN    Capital News Today    News/Business. News.  

    September 18, 2012
    11:00 - 2:00am EDT  

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were simply frivolous arguments. .. we really would have a constitutional moment on her hands. we would see the depth of any meaningful effort by the supreme court to enforce the enumerated power limits on the federal
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government and to enforce the basic federal balance. and i think i really would have been quite remarkable because we have seen certainly since the rehnquist court, but if you take a broad view for out our constitutional history, there's been a long effort come a long struggle to enforce meaningful limits on the commerce clause. everyone of the justices at some level will see the commerce power is fairly broad. i also think all nine justices recognize there have to be limits on the commerce power, otherwise the whole point of enumerating the various powers of congress was entirely beside the point. they could instead the commerce power, were down. now i think some of the justices may question what role there is for the judiciary to enforce the commerce power letters. what happened in this case is that five justices did adopt what is bad at least the dominant view since the lopez
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decision, which is the core can simply knock it out of enforcing limits on federalism on the power of the federal government to adhere to iowa quote justice kennedy from his lopez concurrence. as he said then, the federal balance is too essential a part of archons additional structure in place to vital ebola in securing freedom for us to admit an inability to intervene when one or the other level of government has tipped the scales too far. i think he also recognize this is not an area where there are strong occasional incentives for congress to police it up in exercising its power. the court has to play a role even if the lines are sometimes difficult to articulate and seen as sometimes difficult to enforce and practice. importantly, i think particularly at the cato institute of all places to support direct as justice kennedy dared as he did in the bond opinion two terms ago
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-underscore the federalism isn't there to protect the state. it is there is a fundamental protector of individual liberty informed by the idea that the levers of government postal to the people are much more likely is to be respective of the people's liberty. before i finish come i do have to indifference the academic nature considering objection to this theory that there was a constitutional moment, essentially a verdict and that is what about tax power? it's all well and good if there's enforceable limits on the spending power and it's all well and good there's enforceable limits on the power and necessary proper power, but what about the tax power? i think there are ways to get the tax power is different enough from these other powers that it is still a think significant that the court decided that it decided on the necessary and proper power. if different and i've already
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talked about the fact that with the taxi of different practical outcomes than with an actual individual mandate that congress intended. it's also different on a more theoretical level. the chief justice made this point. i mean, under commerce power if you have the power is not just that you impose penalties to impose criminal sanctions and do anything you want to enforce the main date if it indeed was within the commerce power. on the taxing power is only the power to impose taxes and cheap the chief justice anonymously to say some point a tax would be too politically high and would essentially amount to the same day as an impermissible commerce regulation. so it's actually important for many taxpayers they have a real option to pay the tax instead of the premium. for every individual to remain attacks for the same amount would reset more difficult question. but the last thing and i think this is important is there different structurally. as i just said, i don't really
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think there's much in the structure of congress in the wake of selected for it to be a logical protector or a logical governor switch on the commerce power. they are the federal government and they have an instinct that if there is an outrage about something in the speed there needs to be a federal law to address. i mean, that is their natural instinct. i think it is very difficult to raise new taxes for a reason. taxes are politically very unpopular and indeed i think it's fairly obvious for those that were around at the time that the health care law passed that if it had been labeled a tax in the first and didn't come it very well would not have passed. there is no appetite for increasing taxes. one of the attractive features of the individual mandate is it operated like a tax come a tax on relatively healthy young individuals who were forced to buy some engaging needs, that
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could contribute to the risk pool. but it wasn't labeled a tax. in the future if he remains clear the only way you can have something like an individual mandate is if it is a tax will be much more difficult politically to pass an individual mandate or a tax similar to an individual mandate in the future. it prompts the quest why does congress essentiall give one free pass in the affordable care a why don't the same structural can duration caused the courts consist of congress was willing to call it a taxation get the benefit of the tax power. that is the question the court correctly answered. but nasa said for sitting down with the spending power is also critical and should not be overlooked. i think it would've been hard not to predict that the chief justice to be the deciding vote on the taxing power.
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i'm not sure anyone would've told you to stay 57 though votes on their argument. but indeed they did and i think it's very important for two reasons. one is there is a real difference between the spending power argument and the commerce power argument. if the federal government cannot articulate a limit on the commerce power, the federal government typically loses. the challenge for the states in this case was to articulate a limit on spending power. you know, what is your ticket will limit on the spending power? the point is the inducement of money becomes to coerce? there's an important difference, which is that the government can't articulate a limit on the commerce power, it calls into question the whole process of enumeration in the limits of the federal power. if the courts can't articulate any phone on spending power about when it becomes coercive, the logical consequence of that
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is not that anything goes. the logical consequences to be due to a friend in power. by the spending power so dangerous, congress can tell the states to do things or induce the states to do things that couldn't track them to do directly to the great example is the dole case, where congress gave states money in order to change their drinking age, even though congress couldn't correctly ordered them to change the drinking age. but of course after the prince case, there's lots of things the federal government can't simply order the states to do. they can't simply commandeer them to have an entire structure to administer the medicaid program. they have to have an inducement to do that. if there's no way way to tell on the line between inducement and coercion is enforceable, the logicalconsequence is to say congress can do things in the spending power unless it can
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also do them directly. so i think it was very important to the constitutional structure that the court articulate the limits in the last way in which it is important is in the sense there is now president out there. i can tell you firsthand it's hard to argue spending power argument when the only thing you have decided to and from dole. but when you have the holding of the supreme court of certainly there's going to be much discussion about how it's distinguishable in the nature of medicaid will lend itself to arguments distinguishable. there's not a precedent of the supreme court says that a certain point and inducement to the states to participate in the program simply to coercive to be constitutional and i think that is quite significant. so to sum up, i don't think we be constitutional moment in october 2011, but we almost did and certainly if those had predicted an eight to one landside for the government in
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this case, we would have a very significant constitutional moment. thank you. [applause] >> thank you very much, paul. we have time for a few quick questions and answers before we have a reception. if you could raise your hand and identify yourself and any affiliation you have, that would be good. let's start right here with manny. the microphone is better. the mac mini klausner at the individual rights foundation. paul, which you care to comment or speculate upon the question, was very different vote in the conference swished by the chief justice and it though, with what would be led to that? >> guest: >> it's good to see you be happy
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to give a limit comment which is i have no special sources on and died. i am a big believer that effort to try to parse but notes and opinions and figure out whether a reference to some earlier opinion is really a reference to a prior majority. i think all of that is not time well spent. what i can say though if he was not apparent from the argument that the taxing power with a chief focus of the chief justice and from the standpoint of an advocate, that is something that is unfortunate because there was much discussion of the necessary and proper power and there is really maybe a minute or two on the taxing power. anything the taxing power
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argument took on greater significance as the case that there is internal proliferations than was the case. >> this morning i spoke about the medicaid issue in the first panel and i gave equal weight to the coercion argument into the clear notice argument. i notice that the notice argument was not part of your participation, so just like to get you to comment on that part of the case as well. >> i do think both parts of the opinion are important. i guess that i would say is there is certainly an easier task for the litigant to site court cases that are to impose some kind of clear notice requirement before this case. so to me, what is the aspect of this decision is the real game changer is the factory now have
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something when it comes to the coercion point. but i certainly don't mean to significance the court has made clear, that there is notice remains an important principle. it is fair to say the notice aspect of the case will be harder to distinguish. i do think this is very important to have a precedent to build on and i think there are aspects of how they wrote the opinion that you have analogs on several programs or certain other efforts to expand programs. so i don't think the government will ultimately be successful on the coercion point, only to medicaid. but the notice point is going to be litigated and to have another precedent on that point i think is quite significant.
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>> the question is, do you think there's anything you could have added somewhere along the line that would have been in robbers had and would have calm to have with a different decision? >> well, i guess that i was is you can now sync back with the benefit of this opinion say well, if only i'd started my argument with the taxing power. [laughter] but on the other hand, if i'd done that, my clients would've immediately fired me because i don't think people saw that. it is not the way the lower courts that had upheld the law had not relied on that eerie. there is some briefing on it. so i guess that i would say in answer to your question is i guess the one thing in a perfect
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world, i think if the taxing power issue took on such additional significance, you know, after argument. there is a real argument suggested that with the court should have done is help the case over and asked for separate briefing on the taxing power question and a very important question about whether or not it is an impermissible direct tax. obviously that is something the court has done. i fail to breathe in the key of a case and it is important, but if i had to choose, i would've said the affordable characters even more important. so they held one case for additional argument i separate issue from if i could've voted at what he said why don't you do it or not women really get to the bottom of this issue because it is a much more important issue than people give it credit for. it's very easy to think of the
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taxing power simply being an enumerated power of congress. if you've read the debates in the framing area, it becomes very clear that the apportionment requirement on the that the apportionment requirement on the that the apportionment requirement on the that the apportionment requirement on the end really was the idea that the federal government is not just going to be able to essentially go around the state on direct taxes, but they'll have to have the state do it or they'll have to be apportioned to bonus states. you know, whatever your views about the 16th amendment, which overcame a supreme court decision, limiting the federal government's ability to impose a direct tax on in town. i mean kevin 16th amendment has the way ben a remarkable effect between the balance on the federal state government. i say that just to illustrate how central the direct tax question is your basic constitution structure.
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>> you have said this is not a constitutional moment. [inaudible] -- which is no principle at all. if you can do the same thing under the taxing power to you can do or could do under the commerce power, we still have essentially in a moment of power, don't we for the coercive acts that? >> if there is a weakness in my submission, the way i respond to it -- but i think it is not without a response. i think the response is that there are differences in a think
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they are practical, theoretical and structural. [inaudible] >> well, and i will say, you know, i will address it, but i do think what i would call the structural difference, which is the extent to which congress can actually be expected to play a role in limiting taxation. i think that is awfully significant. i don't want to pass over that because as i said, expecting congress to employ self-restraint with its commerce power is kind of like asking the proverbial fox to guard the henhouse. i think what taxing it is different. the reason it is different is because nothing excites the populace more than the idea that they will raise taxes. and so i do think in a way i don't know that there will ever be a working majority in congress to exercise
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self-restraint with commerce power. i think it is probably right now we do have a working majority to not impose new taxes, certainly in the house. so i do think that different supports. the theoretical difference is that once you have the commerce power, then you can do any name to essentially enforce the mandate to purchase insurance. so you could make it a condition of entering, getting any federal laces. you can make having health insurance be a condition for a student loan, anything like that. but they also could impose substantial penalties. they qaeda the chief justice said sent to jail because once commerce legislates under the commerce power, it is not permitted to just imposing tax
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like action were under the taxing power, that is what they get to do. the limit, which i think is real and i think would be enforceable is the one thing they couldn't do commercial bank for some taxpayers that come close to doing it so you have a choice. your choice is either buy health insurance or pay tax on the amount of your premium. i think the chief justice's opinion for just congress could not do that. but we made it a case to litigate and i ready. [laughter] >> right back there in the middle-of-the-road. >> hi, derek made man from william and mary. i just want to say i find very persuasive all the things you're saying, but i'd like to play devil's advocate against a point and that is the intended impropriety of treating the affordable care at tax as an
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indirect permissible tax by analogy. there is an economic rationale, which says that committees that create negative externalities mayoress intervention. so i guess for example an 18th century carriage would do more damage to roads than average pedestrians. so you impose a tax that forces the carriage owner to internalize the cost and races governor for the government to remedy the problem. i can see the appeal of treating the mandate more as -- or more like a tax on people not buying carriages, but it is important to remember that not owning a carriage doesn't create externality, doesn't impose cost on society while not buying health insurance does. so i want to know, what is the fundamental difference between action and inaction? ain it enabled devils advocacy i can imagine contrary.
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>> here's the thing, i took a year of economics before i went to law school and i'm just not sure that i couldn't take issue with the premise that you could describe some externalities to almost any inaction. and i think if people use their carriages to give people rides fortuitously in the framing area, not having a carriage is kind of selfish and you impose costs on other people had all of a sudden looks an awful lot like, you know, not having health insurance. one way of wrestling with that objection is that i am just not sure the first of all i'm not sure there's a clean distinction. most action in most inaction that some externalities. i also think it is not clear to me is the inaction, action distinction isn't actually a pretty good proxy for the direct
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tax. whatever economic sense it may be, but the relevant question that turn away so there is indirect tax than i do think it's much easier to articulate a tax on a carriages being essentially not a tax on you. it is a tax on your person of carriage. and it's harder to make that argument for the attacks on not having a theoretical taxpayer dear is the last point, which is you can quibble and heaven knows the government and others that have debated about this have about the inaction distinction. i personally am not that fond of that way of thinking about it because ultimately there is more of a textual arguments to regulate commerce and for somebody to regulate commerce. i actually think there is probably the action in action maps on more closely to the
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direct indirect tax framework than it does to commerce power. the last thing i have to say if there's one person who embrace the action distinction in its commerce clause opinion, it is the chief justice. so to embrace the distinction, but then to turn around and basically say as you did in the critical passage that a tax on not having insurance is no different than a tax on gasoline, i think makes a very important job, which is wait a second, all those other cases are distinguishable because they were regulating actions. i know a lot of taxes on gas is an excise tax and all sorts of things. i just am not that familiar with the taxed for not doing something. so i do think ultimately, despite a very fair point as devil's advocate, it is still a weakness in the taxing analysis that emerges as the majority.
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>> thank you [inaudible] the impropriety of using tax dollars because the bill in this case didn't originate from the house so violates the origination cause. i was on it if you could comment on that. >> i haven't studied that issues so i don't want to comment on it because i don't want to cast in a negative dispersions on an issue that i haven't studied. obviously the constitution is the number of structural provisions designed to protect the taxing power, which chief justice marshall recognized from the get go that the power to tax is the power to destroy one of those checks is the origination
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cause that says essentially taxing legislation has to originate in the most populous house, i.e. house of representatives. there certainly is that limit on the tax. i just haven't studied how it maps. >> if npr had asked the question, which you respond? >> welcome you still need a limiting principle. >> the way congress is surrounded as they understand is the bill originates in the house and then goes over to the senate. the senate strips everything for the bill except the age and fills in the content and then goes back to his house. >> of course the issue is the bill originated in the supreme court. [laughter] >> and of course we go with congress over pared >> we are going to go get a drink, which is probably what we
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need. let's have a good round of applause. [applause] please join us for our reception. [inaudible conversations]
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max, oregon governor john
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kitzhaber on reducing health care costs in this state is in a coordinated care model where doctors are paid on health outcomes come enough to reach medical procedure. this new model is also part of the affordable care act. and the center for american progress, and this is just under an hour. >> is a person has worked on health policy for over a decade, i would say that governor kitzhaber is really a hero for all the work he's been doing them were particularly excited today for him to discuss what his innovations in the medicaid program. as many of you may knows, c.a.p. has devoted a lot of time and effort to the issue of lowering health care costs because we see this as an issueor the federal budget, but also state budget, employers, employees and basically an issue of america's competitiveness over the long term.
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and so, we have devoted a lot of resources to looking at ways to lower health care costs and one of the great innovations of what states are doing. today, governor kitzhaber will talk about what his leadership in developing new innovations in the medicaid program and is in the medicaid program itself is a driver for reducing health care costs. this comes at a time when states are really struggling with the rising health care costs that is really putting pressure on medicaid budget. and so, his work is vital to that c.a.p. that a month ago released a series of ideas encapsulated "new england journal of medicine" peace at the heart was innovated ideas at the state level to use the power of states to drive health care costs. so we're excited to have governor kitzhaber here today and i welcome him to the floor.
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[applause] >> thank you very much. wish us a statement on how far i've come or not come to actually taken a complement that being referred to as a policy while hero. thank you very much for inviting me to speak this morning and i particularly want to thank neera and the center for american progress to secure the waivers that were necessary to implement oregon's health care reform proposal. as you know this fundamental problem in our health care system is this huge and growing discrepancy between the cost and care and resources we have available to pay for it and also the fact we have embarrassingly poor population health statistics that show this huge and enormous expenditure of resources to as you also know, there were three strategies both public and private payers have traditionally employed to address rising health care costs. first is reduced we pay for health care, cut provider
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reimbursement. the second is to reduce the number of people covered in the third is to reduce benefit. the first two of the strategies producing what we pay for health care and reducing the number of people cover simply creates barriers to access, forcing people to lay and driving them to emergency department. while both of these strategies allow private payers to reduce their exposure to medical inflation in the short-term, they service a pressure valve that allows us to avoid the real underlying problem which is the cost of medical care itself. neither of these is the fact that because the uncompensated cost of her thigh and shirt and underinsured people are simply shifted back through increases in insurance premiums. the first one i went to debut at the thomas our efforts at health care reform address address the scholarship insightful, were not going to be up to solve this problem in the long-term.
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i believe the opportunity to break the cycle is embedded in our current fiscal crisis precipitated by the collapse of our financial institutions in september 2008 and the great recession with high unemployment and tremendous revenue shortfalls at the state level. i think thomas friedman a look really capture the significance of the moment when he asked, what if the crisis of 2008 represents something more -- more fundamental than a deep recession? what it is really telling us the whole growth model we created over the last 50 years is simply unsustainable, economic and ecologically and she does and it was the year we hit the wall. i think he was absolute right. i don't think the world will ever look like it did before september 2008. we have crossed the divide. we're bumping up against her fiscal image and limits of our national environment. the challenge here is to readjust to this new reality, not to try to go back and return
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to the past, which at least in the case of the health care system was not serving us very well before 2008. and that gives us the opportunity. therein lies the opportunity, ability to adjust to the new reality, rather than create a world that no longer exists. i will return to that in a moment. states following the recession were hard hit because states unlike the federal government can't push their politically difficult fiscal choices and three national debt. they have to operate. states were faced with budget cuts they could not avoid. so in response to this very real crisis, the federal government passed the american recovery and reinvestment act in february 2009 with a $780 billion of stimulus resources designed to help get people back to work, but also help states with their own fiscal problems, particularly in the area of public education and health care. so there's resources were a
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lifeline in 2009 and 2010 in oregon received over a billion dollars and a lion share of an anti-public education medicaid program. so while those resources help keep the medicaid program afloat, there was a distinct downside to these resources. the first spacecraft of the existing health care delivery system that provided no incentive to change. second, they match the impact of the great recession on revenues and thursday were one-time revenue. so when i took office in january 2011, not only did or didn't do some of the largest per capita budgets, we also faced in over $2 billion hole in our medicaid budget, which would have the money to a 40% cut to providers if we had covered -- continue to cover everyone eligible for the program. most states face to the situation simply drop people from coverage. oregon chose a different path
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because we could see little to gain and a lot to lose by simply dropping coverage of forcing people where we would i paid for some of stroke in a hospital, rather than finance team blood pressure medication in the community. so instead we sat to use this crisis as an opportunity to transform the delivery system to get a lower per unit cost had increased only for the dollar spending, starting with a 600,000 people ahmed oregon medicaid program. now, before i describe the product of our efforts, i want to use an analogy to sort of show you where we are at this point in time by comparing development of our health care system to the development of a successful organization, let's say business. we know that a business grows and there's an investment argument that allows for economic growth and posterity. if the business when the circumstances begins to change
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the business doesn't redesigned to reflect the new circumstances rather than the old ones, the curve flattened sauce and begins to drop. the general motors would be a good example of a company that for a long time ignore that and continue to build gas guzzling cars in the face of high oil prices and climate change. a successful business when he sees the world is changing, the business environment is changing, redesigned its business model to reflect the new world, not the old one and develop a nuke or could the problem is for web yield curve a new curve has to coexist in the area in between has been called the area paradox, an area where there's a lot of anxiety and churning and people know what they're doing isn't working and they know the current system isn't quite right, but they are afraid of the unknown. so as a consequence to claim the current system, even though it's unsustainable and even though
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it's failing to produce outcomes that is designed to produce. i submit that is exactly where to find ourselves in the united states come in this area of paradox the come education, economic development, energy policy and transportation and certainly in health care. the challenge before us is not unlike the ropes game and now your school if you've ever done that. they put you on a post with a roper balances over here is another post another rope in your bosses to move from one to the other from the old business model to the new business model. the only way you can do it is going way out here and for a minute let go of this rope in order to grab the new one. you know, it's human nature to claim to the familiar. it's a leap of faith to reach for the possible. so the opportunity here, the leadership challenge is to describe the new business model in such a way that people can see it and embrace it and let go of the old one in order to embrace that and move forward and then move from the current
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paradigm to anyone. for decades the u.s. health care system is operated on a business model that assumes that the public sector and private employers will unquestionably underrate and medical inflation rate destroying the cpi and that the system will continue to be financed notwithstanding the tenuous relationship between these expenditures and positive health outcomes. so in june of last year, the oregon legislature took the first step to developing new business model for health care system, passing two significant pieces of legislation. the first one, house bill 36 safety essentially acknowledged in the area paradox is that of a process to begin to design a new business model in order to transform our health care system. the business model is built around coordinated care organizations, which renewed local entities that are formed are a natural communities of care like a county or hospital referral area.
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each cco will be unique and look different in different parts of the state, but i'll have to comply to four essential elements. the first one is service integration, care coronation in a focus on a bonus prevention community based management of tradition. the second is a connection with community base that serves to address the drivers of population health and the government structure that reflects the new emphasis on population health rather than simply the delivery of medical care. third is managing utilization within a risk-adjusted global budget to christen a fixed-rate and finally accountability for performance standards are on access, clinical outcomes and metrics for improving population health. the legislature also passed senate bill 99, which set in motion a process to create a health insurance exchange come essential market place for individuals and small businesses can get apple to apple could harrison about the quality of various health insurance plans.
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now this exchange, which i come back in a moment is a central element in our strategy to move our transformation beyond the medicaid program and out into the private market. so this past february, after 75 public meetings in consultations and a new borough bull legislative hearings come in the legislature passed senate bill 1580, which adopted the business plan for coordinated care organization and set up an application process to be developed and certified. i think it is worth noting here that the legislature passed this bill as well as the legislation to produce the health insurance exchange with overwhelming bipartisan majorities. schedule 1580 passed the house of representatives voted 53 of 53 to seven. this in an election year, three months before the oregon primary and in the house was slipped 3030 between democrats and republicans. inc. about it, 53 to seven for
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insurance changed. i think that would be unimaginable this year in the united states congress and probably most of the other 48 states, which is another story. so six months ago in march, i submit it to hhs a request for a waiver that would give us the flexibility we needed to pay for new and different ways and a significant infusion of upfront federal money to allow us to stabilize the delivery system for the old health care model to a new one. in april with accepted the first round of applications for organizations interested in cc is. over a dozen applied aired on may 1st i came back from washington d.c. to negotiate the final details of our waiver and met with officials from the white house come the cms and no one being returned to work and on may 3rd with the clement and to invest $1.9 billion in oregon over the next five years
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to help us transfer in the delivery system. as a part of this agreement, oregon agreed to reduce the medicaid member -- per member inflation rate trend that two percentage points by the end to end a 3.5% and lock in the rate of growth going forward. these cost savings will fully pay back the $1.9 billion investment in five years and will save the state and federal government $11 billion over the next 10 years. if every state in the country adopted that same program at the same inflation rate, we would save $1.5 trillion. the super committee was supposed to save 1.2. this would actually save 1.5 and making people healthier and create a more rational system. july 5 we received to move forward in a september 1st through 13 cco's covering about 80% of our medicaid population.
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three additional certified and when they become operational but because the 90% of our population. before i go on, i want to take a moment to see to this 3.5% inflation rate that we've agreed to, which may seem like a pretty daunting task. his film if we continue to think in terms of the old business model. we know the most common admission diagnosis is heart failure were no nationally wordy% of those people are readmitted within 90 days of the same diagnosis. the hospital gets paid each time someone comes in for congestive heart failure but there's no incentive to manage people and a day-to-day basis once they leave the hospital. that's the old. consider the hypothetical case for 92-year-old woman with well-managed congestive heart failure were there an apartment somewhere and there's a heat wave in the temperature goes to
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104, 105 degrees. the increase in temperature can put enough strain on our cardiovascular system and taper into full blown congestive heart failure. under the current system we probably won't even know about her until she shows up at the emergency department. under the new care model there will be somebody given the model is intentionally connected to the community and focused on how. somebody, probably knew health ordinance not to make medical needs for nonmedical news coming to problems being addressed. under the old business model, medicare or medicaid will pay for the $50,000 in the hospital. but it won't pay the window air conditioner that's all she needs to stay in her house and onto the medical system. the difference is $49,800. multiply that hundreds of thousands of times and understand why medicare is driving the national debt. just as importantly, you can
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understand they take in the $49,800 out of the health care system come you don't come because of this, you improve quality of health and life of this woman. in this case she avoided acute congestive heart failure and stays in her home rather than going to the hospital. so that is essential to what we try to do, change the care model and business model and realign our organization and financial incentives to focus on prevention and wellness and community-based management of chronic attention scum which is why we need the flexibility from hhs to change the payment model to support this concept in outcomes and why we need upfront investment to stabilize the current system as they make transitions to the different fund. if this new care model meets the quality improvement standards, we intend to move system transformation beyond medicaid program to the private market and eventually to medicare because that is the only way
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this medicaid reform can be sustained. let me elaborate on that. oregon finances care for 600,000 people, but also 300 people -- public-school teachers. so altogether or purchase care for 900,000 people, which is about 104 and were pretty big dog in the market, but they're still the other 75%. if our intent is to align purchasing power by asking qualified health to align with the new care model of a high quality, low cost option and open that up to public-school teachers and public employees. if this population of state employees were 3.5% a year, the savings to work in his
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$5 billion. that is all well and good that we can reinvest in children and families and economic development, but also takes $5 billion on top of the $11 billion taken out in the medicaid program. so all things being equal the loss of public funding piteously be shifted to the dirt through dramatic increases in their insurance briefs. to avoid that, i started conversations with the air because we believe it is imperative that private employers take steps to align their purchasing power and to demand the same kind of care model that grows at a lower rate of inflation. that is also going to be easier because the public are an private-sector asking them to do exactly the same thing. in the important to recognize the aca through significant
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reductions in medicare. without a new operational care model and unless private purchases is aligned with public purchasing it will rely for senior citizens in a significant shift to the private sector and the obama administration understands that, which is one of the reasons they are supporting this proof of concept of what a new care model of a click. now that may just wrapped up with a few general thoughts. we have a very narrow window to make a transition to a new health care system before politics and economics try this into a purely reaction will posture. the same thing as true public education energy policy and approach to economic development we are in the area of paradox and as importantly we actually have the opportunity and capacity to shape our future. as evidence i would refer you back to the high-stakes game of chicken that took place in
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august of a race the debt ceiling in order to keep the united states understand $14 trillion national debt. i think we would all agree it was not our finest hour. in the end, congress kick the can down the road by pumping the debt ceiling of $2.1 trillion, the doing almost nothing to address the real underlying driver which is the intersection of the nation population and hyperinflationary medical system. i would remind you 18 in 18 months ago the first of 78 million baby boomers became eligible and will come on at the rate of 10,000 everyday for the next 20 years. these are people entitled to publicly financed to the age of 65 and the cost of health care is growing faster than inflation. president clinton said during the condition, do the math. by 2020, every medicare recipient will take $3 out of the system for every dollar they put in, which means we will blow
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through the $2.1 trillion increase for the next year and have to go through this exercise all over again. health care reform is not just about politics. at the end of the day for that economics and the laws of economics are just amenable as the last that excess which means to matter who is elected president, no matter who is in control of congress two months from now, there is no way was it her arms around the national debt without getting arms around the cost of medicare and medicaid. the longer we wait to do it, the harder it's going to be to get there. you know, these programs come in medicare, medicaid and other things we depend upon were created by the greatest generation the last decade with the best of intentions. we simply have not evolved to meet the circumstances we live in today. i thought there a member of the greatest generation. and these are the people i would remind you.
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he was strapped to a 1940. it her third company to 44 cockeyed in new york harbor for spare last two weeks across the atlantic are just to finish up so a red cross launcher, borden told in his first daughter had been born. the shot he had never seen for two years. he was in patton's army, shall the way across the battle of the bulge and the day he was drafted to the day he got back and they wrote to each other every day. attributes of their 62-year-old from infinite 2002 added them into a book a cold war levels to get a copy me and his sisters. this is a really amazing chronic with two amazing people. to ordinary americans sacrificed in the second world war. i used to call that before he died every year and thank him because that's exactly what that generation did.
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not only did they win the war, they came back to create this conversation and built the interstate transportation system that created suburbia picture polio, roddick is smallpox, which is in the unless this amazing social programs of the joint century. social security, g.i. bill, medicare, medicaid. these programs and policies of the vehicles are grandparents fatimah cabrera wrote for us and in so many ways they did. because of the sacrifices, those programs, my generation has enjoyed more promise and opportunity than any generation in the nation. the problem is unwittingly they also sowed the seeds for most of the major problems we have today, and economy utterly dependent on fossil fuel. imported from the most unstable parts of the globe in a health care system that is literally driving a multitrillion dollar national debt. in other words, the way of life depends on the unsustainable
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consumption of resources, physical and natural for the future generation. this is the business of the baby boomer generation. this is what we have left to do. it seems to me that as einstein once said, you know, we can't solve today's problems by using the same level of thinking that we created, but he also said you cannot use an old map to escort the world it is right because every generation is faced with dangerous world and set of problems. it can't be solved duckling into the past past, but only a new set of tools in which to build it. that is our job. our job is to recognize the responsibility to solve this problem as well as the problem we face is initiate economics don't want someone else. they belong to us, you commonly in people throughout this country. there is something we can do
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notwithstanding the gridlock here in washington. there's something we have to do it affordably to do it for so, we should do it for her family. those are going to inherit this dysfunctional system from a dysfunctional rule we created because of our inability to act. but which is close with the words of oregon poet ken stafford avera eloquently captures the opportunity and challenge and responsibility. it's a true story. what vile scum of the international citizen of portland spent his last silent, unable to write for each, late in the hospital says. on his last day home, lloyd wandered outside to the garden or she found him on his knees thursday which is sad, and you'll never see fires again. he smiled at her.
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not me he said. call to the wild geese forgive you. the last old trees for you and your children to the seven generation are all blooming. that's our challenge, to create a clear vision of where we need to go, to act as lead and reengage in this effort and as victims of the past, the captains of the status quo, but a proud architecture to do this. thank you. [applause] >> thank you very much, governor. i think everyone here can tell
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you so many fans in a policy worlds are thank you for earmarks. other treasures are or two panels come in the first days that there steve then stabs you. dr. said to have had business and clinical jobs in the health care world and she has a unique perspective. she brings the business side contraindication site can help i.t. sat upon the clinical knowledge. what i think will be of particular interest to you while she still practices part-time and also teaches part-time anime interested in hearing about some of her status as the governor speech and how they can translate ideas to the clinical level. our second panelist is someone who is quite familiar to people in our audience, dr. zeke emanuel, a senior fellow as well as a vice provost for global initiatives at the university of
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pennsylvania. until january 2011 he served as a special advisor to the direct your the office of management and budget as well as the national economic council, one of the authors of the affordable care act and ask for a delivery performance. so welcome to both of you might actually like to start with seeing what she thought of the governor speech. >> you know, what resonated for me in the governor speech was really talking about the new reality, talking about the new reality, talking about the reasons that's possible. my viewpoint today of the believer and help i.t. as a think about tomorrow in the future of health care, it's really hard to imagine a publishing some of the things the governor mentioned in a paper-based system. in my own practice i've seen a lot of benefits of improved efficiencies, learning, vicious so many benefits to technology
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but have yet to be explored in health care and really need to work within the framework of medicine. we are still at that paradox and i think the future is very bright. >> the oregon mac experiment is on a four pack around the country, which are absolutely pivotal for figuring out what is going to succeed in transforming the system. i think there's a lot of elements in the oregon experiment that really bode well, but clearly learn from some of the other smaller experiments and private sector activities that have gone out there. so let me just unpack what i think is essential. the first is you do have to have this continuity of care and you have to put someone in charge of care. second, you have to give them payment reform to get out of this fee-for-service system that they can transform things. they can buy air conditioners, they can use money for
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transportation and businesses that are necessarily covered so they have flexibility. payment reform is critical. .. >> i agree that technology is
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going to be critical. it's going to be critical in terms of electronic health records to get everyone on the team together, to be able to coordinate with the patient outside, but other technologies are going to begin coming online whether they are wireless to monitor patients at home, using more e-mail to communicate or other mechanisms, and i think what the system that they've created in oregon is going to permit is to run 15 or 16 experiments in each of the communities, maybe not all will succeed, some will succeed very well i'm sure, some will have growing pains. we can't expect, you know, to bat a thousand percent, but we're going to learn going forward what works, what is actually able to control congestive heart failure in the community best, what is able to control diabetes, the big cost
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drivers. give oregon credit. they were out there in the 1990s deciding that they had to cover everyone in medicaid and tried something bold now recognizing that we have a different system, they are trying something bold. i think unlike many places, they are actually putting money down op this because the penalties, if they don't succeed to the federal government are pretty substantial, in the hundreds of millions of dollars, as you heard from the governor, the state already has fiscal problems. that is a good bet they can actually transform the system, and i think it's this kind of bold vision and bold experimentation and innovation that's going to chart the future for us, and as the governor said, we can't stay in the current system exactly the right combination to go forward. we've got a lot of inklings, a lot of interesting innovations, but trying them out in a whole state is, i think, really,
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really novel and path breaking, and i think oregon, along with three or four other states is really blazing the future for us. >> thanks. as you're talking about other states and their reform efforts, actually, i'd like to take an opportunity to plug a report that was put out today in which we're taking a look at some alternatives to fee-for-service, not looking at state experiments, but private sector experiments from payer driven as well as provider driven looking at patient centered medical homes, acos, and bundled payment, and i think talking about the reports for a moment more, what my colleagues and i found that was so interesting when we spoke with the number of organizations throughout the country working on these, and every single thing they were telling us that they needed to do was echoeded in what the goff fortalked about with care
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coordination and being proactive, looking outside the four core walls and a person's health beyond a hospital, beyond a doctor's office, and so having said that, i'd like to kind of explore that issue a little bit more, how, especially as clinicians, how both of you see the movement from fee-for-service moving towards a proactive approach in engaging patients more outside the walls of what we picture now as being the health care system. >> ladies start. [laughter] >> you know, again, i think there's no doubt that the existing system today is not sustainable as the governor mentioned, and as we look towards the future and think about what's sustainable and how are we going to be insent vised and rewarded for values versus volume, technology certainly has a place to serve in that, and i think it is the enabler to everything we are talking about, and so, you know, when you talk about this, what you mentioned
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earlier, how do we keep it out of the hospital and prevent them from being readmitted time and time again, and so if you look at technologies and to the future, weñhr think about remote patient monitoring technologies or ways for parties to be engaged and a way they are not. the average patient visit today is eight minutes. in eight minutes, you have to discuss chronic diseases, treatment regimens, and half of the medications don't roll off the tongue for a lot of the patients; right? if i can give them tools to help them when they go home to digest the material we've talked about, to understand the side effects i reviewed in 20 seconds or less, they will be better able to take care of themselves, and i, as a physician, will do a much better job at taking care of the population, and by having some of the quality metrics and some of the data available through lek tropic medical -- electronic medical records and other technologies, i'll know how i'm doing and be held
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accountable to my patients of a thousand diabetics and understand why they were in the hospital, why they were not, what worked, what did not, and if there's barriers i didn't think of like an air conditioner that could have gone a long way in the eight minute visit opposed to talking about medication x and y, and, again, as we think about the future, medicare is better to the paradigm of the future we're all trying to build. >> i would echo that. health i.t., all sorts of newca technologies, whether it's the monitor at home or to get patients' compliance and engagement, it's all necessary, but not sufficient. they are part of a multiple change that are going to be absolutely critical for the system. they make sense only in the system that pays differently and pays to keep parties healthy. you know, i just to take oneñ&r simple example, i vividly
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remember, we used to send patients out, you know, with a staff, patients with chronic illness like heart failure, with a stack of prescriptions like this and expect them on the one hand to get them filled and then to take four or five pills twice a day or three times a day, you know, knowledgeably, and reliably, and i'll tell you, no one sat back and said that's idiotic; right? no one sat back and said is there a better way? a lot of patients, about a third of patients don't even fill the prescriptions, and then many don't take them right even when they have them. is there a better way? can we get the medications to the house so they don't have to take the initiative to fill them? can we actually give them something to help them remember to take the pills and which pills to take? we have a lot of companies developing different ways of dispensing pills and the pill
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jar tops so they alert patients or they alert the doctor if the pills are not taken or alert the pharmacist when the pills are low. these are the technologies we can use. do we know how to use them yet perfectly? no. that's part of what these experiments do, but we can't have the experiments without legislation and waivers that try them out recognizing that it's a patients with chronic disease who are costing us a lot, where we have deficiencies in quality, and where we need to really focus this care coordination model better. i think that's going to be pivot toll. a lot of it is with technology, but is lot will be people, forming the relationship so the patient trusts when someone calls up at the other end and notices weight is going up because we have a wireless scale at home, and, you know, here's how i would adjust your medication or here's what i
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would do or are you eating right or taking that diuretic? i think these transformations will be critical. i completely agree with the governor. it's important to start somewhere, but unless we get sufficient amount of payment change and sufficient number of payers to change whether it's medicare or medicaid and the private system, it's difficult for hospitals and doctors to completely transform their models because is quarter pays this, three quarters paying the other way, it's hard to make the move. a lot -- i've heard numbers between 30%-60% need to begin talking in one direction for the system to really transform. we're getting to that tipping point in places like oregon, and in other states, massachusetts, illinois, but we need to have more groups on the public sector and private sector moving in lock step. i think the discussions that the governor's beginning to have with the private payers, very
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pivotol to making this a success. >> it's about extending and innovation, not just the technology. technology's easy; right? it's the people part that is complicated. getting to the root of the matter, thinking outside of the box and thinking about innovation, not just from the technology standpoint, but models where to look for and how to think differently about the new paradigm is critical. >> that's one of the things that's in addition to technology advances and health records that we talk about in the fee-for-service, but the other theme, i think, that runs through it, and you can see it also from the governor's remarks as well, with his leadership, is the importance of having strong position leadership at each level. you know, once a state or a payer or a provider or organization decides to try to start implementing these reforms, what leadership can we
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rely on to get the word out from that organization down to, you know, different providers, caring for individuals, and dowr to individuals and their office such as nurse practitioners and other care coordinators, and so -- >> no, i think you're absolutely right. one of the things that i think distinguishes this period of time from, say, the period of time after the failure of the clinton health care reform and in the 1990s, where we did have moderation in health care costs, which turned out not to be sustainable, lasted for five years and came back with avengeance is that the health care system is engaged. in the 1990s, the health care systems, doctors, and hospitals were mightily resistant, did not work with managed care or the government to figure out o new care model, everything was, you know, a battle.
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today, i see it when i go out and talk to people in hospitals and physicians, very, very different. they do recognize, as the governor said, that the system's broken. they have a lot of complaints about the fact the care model they are asked to deliver does not match up with the business model in many cases, and we are stuck in this gap. they are very committed for reforming the system and transforming it, and, you know, some of it is because of -- much of it is because of the affordable care act. they have to do different things on readmissions, different things on patient safety. there's now experiments on accountable care organizations, bundled payments they are getting engaged with, and so, they are being pushed, but now they are voluntarily working hard and trying to figure out how time prove their models. i think the attitude is very, very different, and i think the attitude, importantly, among young physicians is completely different. you know, one of the thingsñ&r t
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just is, they were raised on technology. they use technology all the time. the idea they have a paper record, horrific; right? i mean, they wouldn't know what to do with it, and so i think we're going to see a lot more uptake, especially among -- and push on the system, especially among younger doctors for this. i would say that one other element, which i do get frightened about and increasingly frightened about is our medical medical schools' trg and the kind of education we've created. as not keeping up with these dramatic change, and i think over the next decade or so, they'll really have to transform the way they educate students because it's going to be a new delivery system, team based, be outside of the hospital. it's not going to be, you know, all focused on the intensive care unit, and i think that transformation has yet to occur, and i think, to be honest, a full national discussion of how we transform medical education to match the delivery system we
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need has yet to occur. throwing that out there as the next step, governor, as oregon helps the sciences. >> [inaudible] [laughter] >> and with that, shoutout to the governor, we'd like to bring him back up here for questions and answers, please. >> right there in the front. >> i'm andrew everily, and not only am i an oregon voter, but i'm not working for the foundation, and my question was that, you know, you mentioned that we passed all of these measures in oregon with wide bipartisan support, but you didn't get into how we do that because it's certainly not an
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inevidentability even in oregon or especially in oregon. a few years ago, the legislature was locked in partisan gridlock and got nothing done like congress is today, and somehow in the past few yearses, you, or your counterparts in the legislature found a way to work together and create bipartisan support for things that seem like common sense, but in today's congress and yesterday's oregon's legislature, just didn't work out. can you provide insights into how you did that? >> i don't think it's rocket science, but having a common vision and broad ownership of that common vision. when i came in, i think, as i said, i think the opportunity was in the magnitude of the budget deficit. there was not a lot of room to solve problems. we couldn't buy our way out of this. we knew we were in revenue reduction mode. i changed the debate from how to we close the deficit toçó how do you take the money we have to spend it in a different way to get different results? i ran on that, and the day i was
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elected, i called the speaker elect and the leaders, the co-speakers, in this case, and the senate president, the budget writing people, out to the governor's house, and i walked through what i laid out, and i said, what do you think? where do you agree? where don't you agree? from day one, we were on the same page. we knew health care was not a partisan issue, neither is educating children or growing jobs and grows the economy. we agreed on that. i brought them into the office, and surprise, surprise, relationships actually developed. it was a trust relationship there, and they were able to demonstrate that, you know, solving the problems really depends on the ability of people to, you know, create a vessel where there's trust and common cause, and, you know, real proud of what we did out there. i don't think that's unique to oregon, but that requires a certain kind of leadership and commitment to move beyond partisanship to solving problems that face everyday americans.
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>> there's a few people in the back. >> bob grace with the institute of social medicine and community health. the example of an air conditioner for a patient with congestive heart failure is a really nice example of secondary prevention, but i'm wondering if the state is doing anything about primary prevention?ñhr around community health planning, around addressing the social determined health, not just for patients who already are easily identifiable as high risk, but patients or people who are likely to develop the health problems so that we can really get a more effective delivery system. >> that's a great question, and
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obviously, childhood obesity and type 2 diabetes is a great example of that. there's a crosswalk between the reforms we've taken on in health care and what we do in the education arena. our educational system is siloed. we pretend that kids don't exist until they are in kippedder garten, and k-12 is segmented from high high higher education. we have the oregon education board that creates a single alignment of governance from pre-k to higher education, and we put a huge emphasis on early childhood because that's where the achievement gap occurs, where the huge disparities among communities of color occur so we have a delivery model organized around elementary school encatchment areas where there's the family resource manager that essentially identifies families at risk, brokers the resources
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they need, and that does include nutrition, a host of other things, and we're trying -- there's a crosswalk there between health care and education. two places kids always show up are at school or in the hospital. hospitals now scan for, you know, screen for pku, not risk factors, but we're trying to leverage our resources in thiçtr system to become greater than the sum of their parts. ccos are interested in this because under the payment model, under the specified growth per member per year, if they reduce the inflow of kids with diabetes into the ccu model, they'll have a lot more resources. you have to basically, as most of the other speakers said, you know, you got to take the paradigm outside the hospital because real health benefits happen in the community, preventing chronic diseases from ever developing, and once we do, we need a community based method in order to manage them.
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i'll scrus say one other thing. this requires a fundamentally different work force. it's very, very important because health care industry grew through the recession. they added jobs. a lot of the jobs were people running mris that didn't need to be run, insurance papers, copied administration. we have to retrain them as well-paid professional community health workers with the job to broker health for kids and people as they move through the system. >> can i say one thing? >> i think what you divide is an important divide between primary prevention and secondary prevention. the big money is in prevention, taking people with chronic ilsy65) getting sicker, landing in the hospital, and going through a reinvolving -- revolving loop. primary prevention is critical, especially, first of all, the longer you look, but also in
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vaccines which save money relatively short order, but the fact of the matter is most primary prevention, obesity, smoking cessation, or exercise is best done not in the hospital or doctors' offices. that was the public health measures, best done in the community, and i don't want to say they are two separate rounds because as the governor pointed out, we are trying to bring them close e but be clear they will not save a lot of money in the short term at all. if you want to save money and improve quality in, you know, the five year time horizon that the governor's under, you really need to think about people who got established chronic illness. not to say prevention is not important, believe me, for a country, our country's, it's really important. there's two different kinds of activities and two kinds of situations. the first, primary prevention, is not effectively changing in payment models. you're not going to change it.
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i would say one last thing which is the affordable care act did, in fact, pretty heavily in school base clinics recognize they are important and useful. you know, we don't have enough of them if you want my honest opinion. we have 1 4urbgs ,000 schools -- 100,000 schools and just over 2,000 school based clippics, but they are very, very essential in identifying kids, shortening the absence from school to ensure they get services so i think this is one area where, again, creativity and innovation is made possible by the affordable care act. >> another spin to that because, you know, the fact is that only 10% of your lifetime health is the result of medical systems. 90% is genetics, lifestyle behavior, and social economic issues affecting your ability to make good lifestyle choices. he's right. no solve the immediate crisis, you have to solve the paradigm
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for treating people's chronic illnesses, but long term, reduce the burden of chronic illnesses coming into the system. i argue it has nothing to do with health care, but everything to do with health. that's the biggest paradigm here. the objective of the system is not just financing and delivering medicare to keep people healthy, and if that's the case, then you got to invest as much in community based systems that get at the drivers of population health and essentially, hopefully within two years, we have integrated front end piece, which, by the way, has huge impacts in reducing involvement of the criminal justice system as well, failure and school dropouts, a big benefit in the front end investments. >> i think we have time for maybe two more questions so perhaps the person on the side who i think was waiting before. >> hi, jeff, reporter with think progress. i was curious, a, how the
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passage of the affordable care act was, and b, would the project continue if the alternative plan for medicaid specifically in the republicans' house budget were passed into law? >> the first answer is we were designing this thing independent of the affordable care act. there's no question there are a few similarities between a coordinated care organization and the affordable care act. if the supreme court threw out the affordable care act, we would have been able to proceed with the caveat. there's a significant expansion of coverage coming under the affordable care act, which i think is enormously important, and we wouldn't have been able to do that, more problematic, and we roll a lot of people into the small group market and having both of the elements there gives us sort of a frame work to move forward a lot more quickly. the al tern tiff, essentially -- alternative essentially whether it's the medicaid approach or ryan approach, misses the target by a long sea mile.
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it's a global budget. basically, if you have more people coming into the system because of federal policies that increase unemployment, you actually get less money per person. you penalize people who lost jobs and need health care through that capped approach. the per member per year increase gives you the same amount per person and grows it at a fixed rate. secondly, neither of the things deal with the fundmental problems, the delivery system. they are unique, novel, and ways to faye for the same dysfunctional system. it doesn't matter if there's a single payer system, voucher system, or private system, you'll get the same results. >> last question. >> hi, i'm kate ryan, with the national womens' health network. we've been working on patient and consumer engagements in the coordinated care models. i'd love to hear about how in
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oregon, for example, you communicate with patients and consumers because obviously, initially, they think of hmos, makes people nervous, there's success in smaller models because they are in the community, and so they can actually tell almost every beneficiary why they are not giving them a test. when people hear they are not getting a test, they perceive that as refusal of care. i'd love to hear you talk about how you really engage patients and consumers in a meaningful way that doesn't scare them. >> well, a couple of things. the difference between the old hmos and ccos, the hmos were designed to control cost, and they did that at the expense of quality. the other side is clear accountability for metrics about access and population health, and health outcomes. secondly, their local -- they're local organizations. cost savings are shared within
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the organization, they need a government structure that includes community members and those engaged in activities to try to get the drivers of the population of health, and setting up consumer advisory committees to the governance structure. those are gist getting set up. we are looking for resources to ensure those are meaningful vein knews to engage -- venues to engage community and consumers. timely, i'd say that these are built around patient centered medical homes if you will with a range of providers, you know, mid-level providers and resource managers i mentioned in the early childhood, and their whole emphasis is, you know, you have to have culturally appropriate people to go out in the right community, get the right message, trust in people, but we are well aware of that, and this won't work unless we're successful in engaging people of different communities in this
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process. >> so let me just echo, i think, a couple of things. the first is if you remember back to the 1990s, managed care, you know, it had a very simple model. we have too many beds. we're paying doctors and hospitals too much. you negotiate with only a few hospitals and the other hospitals close. beds go down. then you cut rates to hospitals and doctors. this model, i take it, is very, very different. it's insent vising a whole different way of caring for patients, and, again, trying to keep patients healthy and to keep them out of the hospital and, you know, god willing, out of the doctor's office also. i would say the other thing, you know, if we're honest about patient engagement is it's the watch word for everyone, and it's absolutely vital because, again, patients spend most of the time, if you got a chronic illness or something, you spend time away from the hospital and away from the doctor, and we
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have to get patients vested in things they need to do, taking their medications, sticking to the diet, exercising, whatever else, you know, taking their breathing tests, measuring what their weight is every day and charting it and giving it back to the doctor, but we all have to be honest. we don't know the best way to engage patients. we don't know what combination of face-to-face, with electronics, with family support, or visits from a home health aid works, and we're going to have to try it out. i bet if you look at what are soon going to be 16 different ccos, right, 16? >> 15. >> 15ccos, you'll see a variety of ways. again, i think we need to be prepared. not all will succeed out of the box and will adjust halfway through. that's a good thing; right? we can't just run experiments when they all succeed because we'll never run an experiment; right? >> this is really adaptive management, and the 15ccos, we
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meet every six to eight weeks with the ceos of the ccos around a table. we had dr. burwick out last time, learn from each other, recognize some of these may not work, and if they don't, you know, you don't succeed unless you try, and we can't be risk adverse, and if -- we just have to learn from the mistake, and if you create that culture, you have a lot greater chance of learning from these experimentations than not. >> right. >> we talked earlier about leadership and the need for position leadership. the question is fantastic, and i don't think we need position leadership or patient leadership or policy leadership. i think we need it all; right? at the end of the day, we really need the on the ground real world perspective that's driving us, and that's for the patient engagement that's critical. patients demanding this is paradigm, and younger physicians, those in the work force, every resident has a smart phone and tablet. if they don't use it in a
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patient's room, you lose respect; right? same on a patient side. being able to show them the graph and image and engage with them, help them understand, that's really what we are talking about. it's not the technology, it's not the policy, but how do we engage parties, providers, and the people on the front lines to do this better? we don't have it all figured out, but trying some of this is really what's important and what the governor's doing. >> well, thank you, all, very much, and thank you, all, for joining us. i think it was very interesting. thank you. [applause]
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>> i think there's a lot of anti-obama books out there, critical of the president, a fair number of books defending the president. i didn't want to be either one of the books. i wanted a book to describe and answer what i thought was the
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most important question, most interesting question anyway. look at obama for a moment as a character. he's a complete fish out of water in a way; right? here's a guy who has very little executive experience. his entire life is at the law professor's lectern, at the committee table, illinois state house or u.s. senate or various meetings, but he's never the guy in the front of the room deciding, making the hard calls. very little, if any management experience, and then suddenly, he's in the most important managing job in the world, president of the united states, leader of the free world, and so my question was how does he do it? how does he decide? how does he make decisions? how does he govern? >> in "leading from behind," richard credits president obama's behind the scene advisers for many white house policy victories. this weekend, he'll sit down with forbes.com to discuss
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conclusions on booktv's "after words" on c-span2. >> the new supreme court term beginning monday, october 1st. tuesday, tom goldstein and los angeles times supreme court correspondence previewed the court's new term. this is an hour and 15 minutes from the cay toe -- cato institute. [inaudible conversations] >> our conference concludes with a look ahead to october term 2012. the court's docket as of today is a bit sparse, but not without heft. indeed, were it not for last term's obamacare and sb1070 cases, you could say this coming term would be the term of the decade. in its first two sittings, the court hears cases on international law, property rights, racial preferences,
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higher education, and the fourth amendment as well as the follow-up to the class action blockbuster wal-mart. they filed briefs in all cases as well as in several other pending petitions if granted would be high profile as well. challenges to section five of the voting rights act and the scope of the treaty flex, and looming cases related to gay marriage and defensive marriage act. if you thought you were getting a breather this year, sorry to disappoint you. to discuss the term, we have tom goldstein and david savage. the author of this year's looking ahead essay in the review is a partner at williams and connely focusing on supreme court and appellate litigation arguing 11 cases before the supreme court, more than any other lawyer in the firm's history other than the legendary founder, andrew bennet williams, in a number of areas like antitrust and criminal law. born and raised in lawrence,
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kansas, go jay hawks? >> yeah, absolutely. >> he received the ab from harvard, many-lit from oxford, and jd from harvard, executive editor of the harvard law review and clerked for scalia and court of appeals for the fourth circuit and joined williams in 2008 after serving as an assistant to the solicitor general. most importantly, he's my girlfriend's boss. [laughter] tom goldstein, a partner at goldstein and russell, supreme court bo teak, known as goldstein how and russell. he removed his wife from the letter head. [laughter] he argued 25 cases before the supreme court spanning a broad array of issues. he teaches supreme court litigation in stanford and harvard law schools, and in 2003, he founded the blog making my job so much easier and which in 2010, was the only blog ever
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to receive the aba silver gavel award for fostering the understand of law. among his accolades, the national law journal named him one of the 40 most influential lawyers of the decade, and the legal times named him one the 90 great washington lawyers in 20 # years, and gq named him one of the 50 most influential person in washington. we are in esteemedded company here. there's more. he was one of the best lawyers under 40, one of the top 45 under 45. you see where this is going. in 50 years, expect him to be one the top 100 lawyers under 1 4urbgs. 100. [laughter] he's slipping. five years ago, he was one of the five lawyers under five. [laughter] finally, david is a advantage, the supreme -- david savage. he worked out the paper's washington bureau, had a vantage point to observe the court's
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actions and decisions for three decades. hethe time's education writer in l.a.. he cover the efforts of the reagan and first bush administrations to remake the high court and writes a monthly column for the aba journal offering legal commentary on "talk of the nation." david is not a lawyer, grew up in the pittsburgh area, and holds degrees from unc and north western. >> thank you. it's great to be here at cato to talk about the supreme court term, and we already had one mystery solved because we know why he wore the fetching suit today, trying to follow tom in the pages of gq. [laughter] i don't think i really have a shot at that since evidently your suit has to be visible from outer space in order to be a
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contender. [laughter] in any event, here i was thinking that i was somehow privileged to be asked to write the preview for the supreme court review this year, when, in fact, i was simply asked because i'm his girlfriend's boss. [laughter] in any event, notwithstanding that, it was, indeed, a privilege to write the preview with my colleague, jamie mcdonald from williams and connely who clerked for the chief justice a few years ago, and i certainly commend that to you and to the extent you find is useful, i assure you that's because the jamie's good work, and not because of my own. in any event, he asked me to talk about the criminal docket this year, and i'll be relatively brief because at least as of now, the court's criminal docket is relatively limited. i'll say a word because i'm the first speaker about the upcoming term because i really do think
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that it has the potential to be a very interesting term. i think last term in many ways was a somewhat unusual term because perhaps never in the modern era has a single case so dominated the attention given to the court as was true last term with the health care cases and, of course, i know you've heard a little bit about that over the course of today, and i suspect you'll hear a little more in the lectures to follow, but, you know, it really was kind of one of those remarkable episodes in the court's history, you know, i was sitting in my office, the afternoon of the oral arguments, listening to the audio of the oral arguments on, i think, the second day, the big day when the constitutionality of the individual mandate was discussed, and i opened up twitter on my computer, one of the relatively few social networks sites not blocked at my law firm, and, you know, if you type in "health care" or
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"solicitor general," or other key words, there's hundreds of thousands of things coming up every few seconds. it's hard to think of a supreme court case that compares because the health care cases were really the first major cases of that magnitude, at least in the kind of internet era, and certainly, probably, the biggest cases with the possible exception of bush versus gore over the course of my own career. in talking about next term, there's an after the flood sense of what is going to come next, and i think what's going to come next are a series of substantial cases i'll -- i'm not sure they'll issue up to the health care cases in terms of public attention, but there's cases on affirmative action, race, same-sex marriage, and potentially other issues that i think are going to definitely be front page stories for david in
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the course of the next year. i'm not sure any of the cases i'm going to discuss quite rise to that level, but, of course, the night is still young and the supreme court has filled a little bit less than half of the docket for the upcoming year, and so to some extent this is going to be a predictive exercise where all three of us attempt to guess what cases land on the court's docket in addition to the cases that are already there. i'm going to focus primarily on the fourth amendment, and as someone who's argued fourth amount cases in the court in the past and has therefore perhaps paid particular attention to that corp.er of the court's -- corner of the court's docket, it never ceases to amaze me that the supreme court finds seemingly every year at least two or three fourth amendment cases to put on its docket. now, to be sure, the court sometimes confronts issues involving the application of
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familiar of fourth amendment principles to new technologies. last term, the spreerm court had the united states versus jones case involving tracking devices. i'm not sure anyone under 40 views tracking devices as new technology, but by supreme court standards they qualified, and there's at least one case potentially on the horizon that involves a new technology, but in terms of the fourth amendment cases that are already on the court's dockets, i think it's fair to say that often involves old technology, and i guess i promised that i would slip in at least one k-9 jokes, but this is the year the supreme court goes to the dogs. they have no fewer than two cases involving the application of the fourth amendment to dog snuff, and perhaps intentional or or unintentional act of
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humor, they set both cases for oral argument on halloween. the court is going to have kind of a fourth amendment day on halloween with these two cases involving dogs, and a further familiarity, is the two cases actually come from the state of florida, both from the florida supreme court, and so the state of florida's actually the petitioner in both of the cases that the court's going to hear. of those two canine cases, i think the case that's probably of greater interest is the case called florida jeer sus jardines with the question whether the police can use dogs to sniff the outside of the house. i believe they literally sniff the outside of the front door of the house to determine whether or not there is contraband in the house. that's an interesting cause because it really involves the intersection of two basic fourth amendment principles. it's pretty well settled that a
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dog sniff ordinarily does not constitute a search and thereby -- therefore does not require any additional level of individualized suspicion, and in a series of cases involving searches in public places, the supreme court has so held so if a dog comes up to you as you're waiting for your luggage and to make it simpler for fourth amendment purposes, pause that you're waiting for luggage from a domestic flight, a dog can come up to you, to your luggage, and if contraband is found, you are potentially subject to arrest. the question in the case is whether that analysis is somehow different when the home is the context involved, and some of you will recall that the supreme court in a case ten years ago held the use of a thermal
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imaging device, a device to sense heat emanating from a house, potentially a sign of the growth of illegal substances within the house, does constitute a search for fourth amendment purposes, and that opinion was written by an interesting majority of justice scalia joined by some the courts so-called liberal members in reaching the conclusion that that constitutes the search because of the enhanced nature of the technology, and so the question that's presented in the case is really which of these two fourth amendment principles is going to be controlling? is this controlled by the general principle that dog sniffs are okay without more or is the fact it'sñ use context of the home sufficient to render the analysis different? the other dog case is the case called florida versus harris. it presents a somewhat more technical question about the
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degree of qualification that a dog has to have in order to give race to probably cause, and so the question in the case is whether it's sufficient to present a certificate, the equivalent of a dog di diploma indicating the dog is train, well-trained, reliable, or whether the government has to make a detailed showing which is what the florida supreme court required, and, again, those cases are going to be argued back-to-back on halloween. the other fourth amendment case is currently on the court's docket is actually a case i'll argue on behalf of the defendant, the day before, so it really will be not just fourth amendment day, but fourth amendment week at the supreme court, and it involves one of the questions that you might have thought would have long sense been settled, but, in fact, has not been as the existence of a conflict in the court of appeals on the question indicates. it involves one of the relatively few categorical rules
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the supreme court formulated under the fourth amendment. the case of michigan versus summers which held that the police have the authority to detain the occupants of a house if it is the execution of the search warrant regardless of the degree of individualized suspicion during the duration of the execution of the search, and that's a rule the supreme court adopted because of the concerns for officer safety and out of a desire to ensure the orderly completion of the search. well, our case bayley versus the united states presents the question how far that rationale extends, and so in our case, the police were about to execute the search warrant at a house, saw two individuals leaving the house, and they were surveilling the house seemingly under cover when they saw the individuals leave, and they proceeded to follow the individuals for a
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mile away from the house to detain the individuals, and then to bring them back to the house invoking the rule of michigan versus summer, and the question is whether the justifications for the categorical rule of the court is app extension of the rule to a situation in which the individuals were detained away from the house and really before the police commenced the execution of the search warrant and as with all of these cases, i'd really send you to tom's blog if yoir interested in the cases in greater detail where you can find the briefs filed to-date. the c organization -- the cato institute filed a brief together with the aclu prepared by katherine carroll and others that supported the position of our client and argued that the categorical rule should not be extended to this situation. there is yet a fourth amendment case or issue that could potentially land on the court's docket. this is another case in which
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we're involved as co-counsel with the public defender's office, and i see steven's in the audience today. it's a case called marilyn versus king presenting the application of traditional fourth amendment principles in the devolving context of the collection and testing of dna evidence. this is a case involving a maryland statute providing for the collection and testing of dna from individuals who have been arrested, but not yet convicted of a crime for the purpose of investigating other crimes. in this case, our client, alonzo king was arrested for assault. his dna was collected and then tested, and that evidence was used in connection with the prosecution for a rain. the question is whether that is permissible under the fourth amendment, and if it's an issue that presents a number of interesting subsidiary fourth amendment questions. the maryland court of appeals, the highest state court, held
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that there was a fourth amendment violation in this case. the state of maryland filed a petition this we has not been responded to, but the chief justice issued a state pending the disposition of the sur petition saying the chief justice thinks there's a fair probability that the petition for review will be granted and without giving too much of a preview what we say in the response for the petition, i say there is some degree of disagreement in the lower courts, but it's fair to say there has been relatively little written, at least at the level of state supreme courts and federal courts of appeals on this specific issue. there's actually a case that's going to be argued enbanc in the 9th circuit tomorrow. the law is still developing in the lower court. another thing, quickly, is there are two cases on the court's
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docket that present an issue of some practical significance which is whether capital defendant has a right to be exe tent during habeas corpus proceedings. the cases are, i believe, ryan and tibels also to be argued back-to-back, and i believe argued next month, and the supreme court held there is a right to essentially be competent at the point of execution in a case called ford versus wanewright, but the court -- of course there's a right to be exe tent at the time of -- competent at the time of trail, but they never spoke if there's a right to be competent in between. the 9th and 6th circuit held there is such a right, all be it resting on very different grounds, and so i think as a practical matter, those are cases that may be reasonably significant. i think with that i'll hand off to my colleagues to talk about
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the civil part of the court's together. [applause] >> thank you so much. always a great pleasure to be here at cato. i like how so many of the people before me congratulate you for the wonderful event, the pam, and the fantastic facility, my first opportunity, and if you watch any video, definitely see the real thing in person. i am going to talk about the business docket, and while it's the case that the criminal docket can touch those of us who are criminal defendants, which is only half of us probably -- [laughter] for those of us who simply care about our relationship with the government when it comes to our individual privacy, you know, when can the government have a dog sniffing us in the airport or homes, that sort of thing. it is relatively less common that the business cases touch us
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so individually and so personally, and so i'll cover ten cases on the docket and four serf petitions in summary form because the main event is the big sexy interesting cases that david talks about. i'll frame the business together for you and so that you have a sense of what's going on in the assumption that a lot of the cases won't have immediate, direct influence on your life. the best example, i'll describe for you the allegations of the complaint, and if that happened to you, raise your hand, and we'll talk at greater length. the plaintiffs allege that an overseas oil company conspired with the military government of nigeria to involve the nigeria government in putting down the opposition to oil field developments in nigeria, and so
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if that's happened to you -- [laughter] okay. that was my guess. it is an important controversy in american law. the alien tort statute says aliens can bring tort suits in u.s. courts. it's a really old statute, and the basis for the lawsuit has to be a violation by some party of a basic principle of international law or treaty in which the united states has subscribe. the court of appeals decided this case, which is the nigeria versus the overseas oil company, on the ground that the statute doesn't apply to companies, and the supreme court agreed to decide last time the interesting question which is can you bring the alien tort suits against company, and then aves apparent there was another, perhaps bigger issue lurking in the case, and that is does the statute apply extraterritorially? this is a case brought by foreigners against the foreign company about something that happened overseas, and the supreme court was asked to
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decide does this statute become the ordinary presumption in american law that it applies to stuff that happens here, and if congress wants it to apply to stuff that happens in other places or exclusively happens in other places says so expressly. the supreme court after oral argument in the case said we're going to start again. come back next term, and the supreme court hears argument this term on the extraterritoriality question, and ifñhr it applies extraterritorially, they'll decide the question they original agreed to hear about whether the atf applies to companies. the obama administration filed a brief that says maybe. it says that at least when itñ%i comes to a suit like this one, involving allegations by foreigners, a foreign sovereign, a conspiracy allegedly involving the nigeria government about events that happened entirely overseas that the statute should not be read to apply, but the administration walking back earlier positions said earlier
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that government briefs had their position said sometimes the atf can apply to overseas extraterritorial cuke. it's not clear what line exactly the supreme court draws. they defer a lot to the position of the government in cases like this because the cases involve the foreign affairs relationships of the united states so the solicitor general's brief will be important. it seems unlikely that the plaintiffs prevail in this supreme court on this allegation, but it is an important and recurring controversy that a lot of companies face -- not a lot, but a fair number of companies face significant human rights lawsuits, and this is going to be the supreme court case that decides whether they can go forward. the supreme court is going to also take up the mexicos of the famous wal-mart versus dukes case. wal-mart was famous for dealing
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with the question if you can have a class action involving hundreds of thousands of people there, female employees of wal-mart, supervised by a lot of people in a lot of stores, do they have the commonality to produce a single class action to litigate all claims against wal-mart together? that issue will not come up this term in the supreme court, but there's a piece of wal-mart that is, and that is the supreme court in the wal-mart case said and pointed in the direction of there are more merit-type issues that should be decided at the beginning of a class action rather than the late class action. just a detour section about class action procedure, what happens in the cases that is under rule 23 of the federal rules of civil procedure, what you're supposed to do is you, as the judge, decide whether or not this group of people that's supposed to be the plaintiff have a common set of issues to justify all litigating together. defendants fear these class actions because they produce the possibility of huge damage
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awards, potentially inducing large settlements, sometimes unwieldy, but important for civil rights litigation. the twoñ&r follow-on cases this term are mgen and comcast, a case that involves the so-called fraud on market theories and litigation, and the supreme court says you can have a class action that says even though each individual investor in a company may have to prove his or her reliance. i saw some misstatement by the company, and therefore i bought the stock or i didn't sell the stock. although that's regarded as an individual fact rather than a common fact that the class ordinarily litigates, under the notion of an efficient market, the spreerm court -- supreme court assumes material in the marketplace is relied on by investors litigated on an
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aggregate by all investors, security fraud cases like this, rather than each single investor filing a fraud case. several things settled should be decided by the judge before the class action gets underway including whether there's an efficient market, whether there was a misstatement made that was public. the supreme court is taking up, in this case, the question of whether the misstatement that was made was material. should that be decided at the beginning of the case or later in the case, and that can make a big difference, again, just in the general notion of class actions. the more the defendants force the courts to decide early on rather than later, the better chance they have of cutting off the class action at the beginning. same sort of deal in the comcast case. ..
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list payback. >> >> is it thereby can the during
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in a trust? and the supreme court said there is assured enact but the state itself passes a law that will be anti-competitive the does not require competition but then they could have antitrust immunity. you could create a hospital system if it integrates itself to create a monopoly in the local area. something closer to home, the civil-rights case for the supervisor liability.
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if you sue your employer a dubious something for management but nothing white a co-worker. it is individual action, there is a supervisor liability. they could be held liable but what does that mean? somebody who can hire and fire and supervise. he can fire her. what kind of authority is triggered i could tell you what to do or the ability their lives are happy this all together.
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[laughter] and. >> i have been paying closer attention. [laughter] >> what is so exciting is u.s. airwaves that this could happen to you. you may have a health benefit plan coming up your injured but they sues someone the other person is at fault and we recover some money. can they recoup that money in particular with the
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$20,000 recovery but the lawyer takes most of it. [laughter] eighty% contingency. [laughter] you have $4,000 left. can u.s. airways take the whole 20,000 even though you don't have all of the money? >> the answer is the lawyer gets that. >> all good things end with a check to a lawyer. talk about arkansas game and fish. to have tens of acres of land flooded on a recurring basis by the federal
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government? the question is is the takings clause because the government physically or regulatory clause can take the property this is interesting puzzle every year for the past six years government has flooded the land but then it goes away but it comes back and the government says when the water goes away you can have the land back.
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but until we really come along and some cases suggest permanent flooding only traders a takings violation. they say come on. it is 8 feet of water because of the stupid federal government project. one is where kannon shanmugam filed an important petition i represent on behalf of truth. [laughter] the issue is as follows. the drug companies have patents where is the statutory scheme that they need to challenge the
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validity of the patent and these disputes get settled in the unusual way including a payment and as a result of the entry into the market. at what point* are they subject to antitrust scrutiny? there is nothing unlawful about that. so cannon has said so they
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may decide to two that this year. with the rules if you do a patent explain the reason it is suri can knollwood is and what invention has been stated and rjr says the of federal district has jurisdiction and it has to be comprehensible. rjr's says that is not good enough. and another says if you get aids and finding you have
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done apollo sea that opposes sex trafficking. that should not be that difficult but it does raise the interest day first amendment question that the government says you have to express a particular point* of view or is it just government funding? >> but not for any reason of the question under the fair housing act it is often invoked in with the neighborhood with the you could have an impact claim is that to the
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discrimination that is unintentional. policy to have the adverse effect and even if you did not intend of what you have done is illegal. which it turns out is all you need. the supreme court is not consider that other question. thank you very much. [applause] >> it is good to be here. working with arkansas game and fish but now i realize he was so heavily invested.
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and fall saying race and gay-rights. thank you. in october you probably read about it. and then giving an event they should vantage so to change the university so i was denied equal protection. some interesting case also of erase neutral alternatives, a federal appeals court said you may
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not use race at the university of texas. and then cited by give a under george bush to grant automatic admission to the top 10 percent graduates of all high-school so across the state. but now mexican-american kids and students in houston or dallas suddenly had an opportunity into goes to yuki austin. the percentage of minority kids come begin steadily
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rose. they did very well of high-school but after the supreme court nearly upheld race-based affirmative action in university of michigan and texas announced they would go back to using race for a limited part of the class. 25% of the freshman class. that come in under the review and university says we will consider a lot of things. we won some discretion. if there is interested in architecture or music we
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want to choose that child. they are defending race for a limited part. and abigail fisher was turned down striking me as good but not exxon. and then was turned down but she sued to think she would have a very strong claim but it is able to say race plays a role therefore i was discriminated. so a very limited way they we're doing that. the supreme court granted that.
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justice o'connor is gone, justice kennedy has dissented every affirmative action case but in 2003. >> he descended on all of them upholding the program. >> but in 2003 he wrote to he could accept the justice notion going back university could consider race on one factor but before we approve with the ignition scheme we should seriously force universities to consider race base day shom sorry
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race neutral alternatives. that is where we are now. so to break a significant number of minority students trying to go further to consider race. so to talk to people about the case overwhelmingly those students come in. nine at of 10. and 36% of those coming and were hispanic or black. is so they we're doing better under the automatic review policy.
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i don't know what the court will do but watch justice kennedy if they say something the university cannot have race-based affirmative action plan if race neutral could work. you could write the opinion texas sold the case. they have only had this much success but it is a twist in the case. now with the next, since 1965, the south is under special scrutiny. you could not change
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election losses were voting rights without clearance from the justice department in washington. is that policies so outdated and unfair to the southern states that it should be struck down? i think the five justices are inclined to think indiana, pa., wisconsin and can pass motor ideologues ideologues -- boater a dedication laws to have an impact the south carolina and texas have been blocked from the dead to go lot. it will be hard for those defenders for the four men of the says only the
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southern states are under the rubric when it seems ohio and pennsylvania have the same voting problems as taxes -- texas ourself carolina. i think the view is they will hear one of the cases with the better than average chance section v will be limited restrict down. and also confident they will take the gay-rights and very jacked. whether nine days can vary where it is legal where they have a right to equal benefit under federal law. the first circuit court in the mingle and brought by
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several gay couples legally married but cannot file a joint tax return. if one works for the postal service can a spouse be on the health care plan? mrs. equal treatment i think the court will take the case in this likely that it did not raise the illegally married gay couple to equal protection. that they have a right to marry will be in mississippi your nebraska but although they never said what is the standard of review with
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discrimination? they have never quite said. with the defense of marriage act that they decided later on. i will stop prepare. [applause] >> anything else to add? >> also the petition pending on the constitutionality of proposition viii, and the challenge to represent the same-sex couple wishing to
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be buried in california. on whether there is a constitutional right in its same time table but whether it might with the defense of marriage act and hold proposition viii case and then it will take all of the cases together. >> i think it is less likely to be taken. the ninth circuit judge roach it to and a manner that read like the california case. it is easier for them to decide if they want to dodge
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the bullet now. susumu those lectures please day in your seat. >> i am from the reason foundation and individual rights and a sham. what impact from the amicus brief firm richard sander at ucla showing the impact but whether of legacy or affirmative-action with the gpa and s.a.t. scores the
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odds are many will flunk out to do bad they. it will pay a huge price without the qualifications of their peers. as if they went to a second-tier school. >> anyone want to comment? >> and to think this is not even helping it is supposed to help.
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i thinking this interesting research. i don't think it will change much at the supreme court. >> i read the book on the plane yesterday. the villaraigosa against texas. not germane to the question but to but clearly they are targeted and justice kennedy given the fact never voted
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to sustain the affirmative-action the changing the language from the opinion but i am hesitant to make predictions about outcomes this is one area the recent changes of the membership could make the outcome different. and a broad sense of the issue of race i don't think that is true. >> i think the handwriting
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is on the wall. so with the principal plaintive slow whether it is a moot point* if they took the case fully aware after long consideration, but one possible outcome is a court decides in is the inappropriate vehicle. with the post o'connor era. >> what about the tax? [laughter]
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>> on the defense of marriage cases will fall faith and credit costs or gatt all? >> when it was passed 1996 all the talk then was a question of the fear if one state has gay marriage all we'll fall like dominoes. then they will get married to that larouche is a need to honor the marriage. the then initially to say states do not need to recognize the that issue was not challenged.
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this is only the federal benefits part. >> i don't know if you care to speculate on the argument that it coming back through academia? >> if this inside baseball they will file the brief in agencies sewer department said the executive branch who already involved will send a brief as well. the first time the state
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department sign the brief in believing the foreign policy interest for have plagued-- heavily implicated put the importance has not gone down but the inference so the legal advisor does not agree. no matter how powerful. [laughter] >> with the voting rights act. >> i am very proud. >> talk about empirical evidence should to williams in his dissent laid out
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powerful a empirical evidence for the formula that was used and criteria used was not convinced dain to good d.c. circuit. >> it would be more convincing. >> but coming to affirmative action we see section 50 lot. justice kennedy has written about a lot. it is for many of the justices the list of the covered jurisdictions was
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created in another era. when congress enacted that the new list seems like the old list. for those justices that believe strongly of section five lead on big it will change their mind but confirmed the view of the rest of the court. >> it is such a historic impact and is the main reason congresses never quibbled and the supreme court stops from striking it down. one of the most effective losses of the 20th century but in summiteers having so
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many tricky schemes the only way to do it is under federal scrutiny. is hard to say there totally different. but in florida there are five counties governed by section five and 62 counties are not. talk about early voting they agreed it has an impact on the minority voters.
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the court that handled the case with the decision only affects a couple of counties. you would be hard-pressed to find the common theme. maybe the whole country should be handed the special scrutiny for those two disenfranchises the minority is. it is hard to explain how the current formula and state and others for the five years. not just the deep south but
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the old confederacy, three counties in new york state i wrote to there are four justices on the court. >> so i think the issues with the coverage formula for those stores skeptical about the validity they could declare that coverage for mayor of valid without directly in validating section five with their reputation of the court with
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the opinion that says a new coverage formula there is no way to skin the section five cap. that is much easier to resolve the case but may have the same practical effect it is so hard to get any legislation through the current congress to agree on which subdivisions are covered strikes me as a very political task. >> talk about the scope of this treaty power, why is it important to know the
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answer? >> are lecture will be speaking shortly. the course he year dues every year. this case, two years ago is your garden variety with adultery and chemical weapons. this woman learned her best friend was pregnant by her husband. instead of divorcing him she would get some chemicals
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through working and a lab and sprinkle them in the mailbox and the door handle to the car. she does get hurt so the woman is charged with attempted murder? assault? no. she is charged with the federal prosecutor for violating the federal statute to implement on chemical weapons in the proliferation. [laughter] so the first question comes to mind is can she defend herself to attack the prosecution?
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the federal government to even truly changed its mind and the court issued an opinion with strong language from justice kennedy of the structural provisions of their to protect things like this. she may save argument the government is expanding its powers without this it could not prosecute. by the senate ratifying it gives congress more power. that sounds odd. she makes the argument but unfortunately there is a short opinion justice holmes
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has been interpreted open years to be in good treaty can extend federal power. but they are reluctant to do so to ask the court to take it up for overrule ed to. and then to file the amicus brief hopefully will get their. then written by the professor at georgetown who has a brilliant article called the treaty power at
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about what it is all about excederin excederin hopefully this will go up and roberts will say you have been misinterpreting oliver wendell holmes a whole time. only applies to migratory birds. [laughter] >> i would like to ask those with expertise and the craftsmanship of judicial opinions and the text of the voting rights act whether it is rich and in such a way the supreme court could
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strike down the coverage formula to leave the rest of section v standing that until congress acted but it would apply nationwide? >> i'd think the interesting question and i am no expert expert, but i will take a shot. but they could say section v cannot operate without the coverage for me up. to mix metaphors, section v cannot operate. i don't know how that
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dovetails but so that flexibility away the case has been mitigated it is option number one. in lome awkwardness is to figure out the kraft to know the remedy could be permanent. >> it is a very interest same question to see how the litigators tried to position that as the alternative. >> it is a coverage formula.
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>> i am a litigating attorney washington d.c.. we had a housing crisis was state and county and none visible government's taking with mortgages and underlying contracts. has anyone seen the article i, a section 10 per habits with the contract was? >> there are not to any that i am aware of. there are a couple of cases challenging dodd/frank which
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is completed the and related. and the lowercase most notable been dead district court right now. >> this is the last question. >> talk about national-security cases since then there has not been any it looks as though they will reverse so does anybody want to comment why the court seems more
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reluctant having to do with the handily of four policy over the bush administration? >> clearly we sold all the problems. >> having been reported in some detail it has some no willie this and leone case on the dock it right now involves a question whether particular individuals with the procedures firms the
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fisa amendment along with the big ticket case. they have not gone into the detainee case that the supreme court is generally comfortable the way the d.c. circuit to have any indication if the supreme court is comfortable. [applause]
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>> i want to welcome those who just joined us to center for constitutional studies i want to welcome the c-span audience who are joining us for the lecture. name did not honor of the
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pittsburg o entrepreneur and industrialist of the kate institute to further the thought of the american founders. for legal scholars sam practicing attorneys with constitutional issues. the first lecture was unconstitutional given by ginsberg of the d.c. circuit. since then and has been subjects ranging from property rights progressivism and is subject of last year's speech which was of the sa of the supreme court review that has just
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come out and you can get it by going to the qaeda web site. we begin this second decade of the lectures the honorable paul clement as one of the gifted practitioners to appear rick urie before the supreme court. is currently a partner although his practice takes too far and wide. serving from june 2005 through 2008. he served as acting general
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for were the fiercest more than seven years of service which is the longest period since the 19th century. he argued over 60 cases of course, the case with which we began the conference today. he received his bachelor's degree and a master's degree from cambridge university. he graduated from harvard law school where he was the supreme court editor of the harvard law review. then he clerked coalesce circuit and ford justice scalia and one on to serve
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as chief counsel on the constitution federalism and property rights. inch really entitled october term 2011. please bulk of paul comment. [applause] >> 84 that kind introduction i have attended a number of publishers myself so it is an honor to be at the podium for thoughts on october 2011. i have the distinct pleasure to argue on behalf of 26 states b.a.t added they combine together as a rather remarkable development in
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the case at itself. i want to talk about that case per kurt. i know there's almost nothing left to be said as it is analyze as any case. i have been privileged to be involved with a 60 supreme court cases but no case captures the public attention the way of the health care challenge. they had a rather unique park sometimes the arc passes and is identified to have a constitutional problem another case was the
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constitutional case to mccain-feingold. a large debate of the first amendment in the case probably a made its way to the supreme court of the united states. by contrast there was a healthy policy debate anyone remembers the procedural maneuvering and scott brown was elected seemingly the votes were not there. but the policy meritsthere was not a robust debate that began in the waning-- followed by mitigation.
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the reaction was not that it was a long shot but it was a frivolous. with a conspiracy among other places someone who looks at things objectively gave the challengers a chance of success. and others said it was generous. but with the opinion in richmond striking it down then the decision in florida that focuses on the individual mandate to and
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also through several ability struck down the balance of the statute. but in the popular press and narrative went from this is frivolous two o may a republican appointee could of. the there was only room for correspondence between the president appointing the district court should and how it salt the affordable care act challenges after they upheld the law in both republican appointees struck the individual mandate down. at the court of appeals
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level that easy narrative of what the party was at the court of appeals low that the sixth circuit voted to uphold the statute mindich tremendous line of the movement but also cast a vote to uphold the law. she was appointed by president clinton some of the pattern broke down then good death knell of suggestions was the supreme court action to take the case. once devoted

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